DNA Exonerations and Discoveries in the U.S.

In 1989, Gary Dotson was the ﬁrst wrongfully convicted individual to be proven innocent through the then-new science of DNA testing. Almost two decades later, more than 200 individuals have been exonerated by post-conviction DNA testing and released from prison, some from death row. In 15–20% of these cases, police-induced false confessions were involved (Garrett, 2008; www.innocence project.org). A disturbing number of these have occurred in high-proﬁle cases, such as New York City’s Central Park Jogger case, where ﬁve false confessions were taken within a single investigation. In that case, ﬁve teenagers confessed during lengthy interrogations to the 1989 brutal assault and rape of a young woman in Central Park. Each boy retracted his statement immediately upon arrest, saying he had confessed because he expected to go home afterward. All the boys were convicted and sent to prison, only to be exonerated in 2002 when the real rapist gave a confession, accurately detailed, that was conﬁrmed by DNA evidence (People of the State of New York v. Kharey Wise et al., 2002). Post-conviction DNA tests and exonerations have offered a window into the causes of wrongful conviction. Researchers and legal scholars have long documented the problem and its sources of error (Borchard, 1932; Frank & Frank, 1957; see Leo, 2005 for a review). Yet criminal justice ofﬁcials, commentators, and the public have tended until recently to be highly skeptical of its occurrence, especially in death penalty cases (Bedau & Radelet, 1987). The steady stream of post-conviction DNA exonerations in the last two decades has begun to transform this perception. Indeed, these cases have established the leading causes of error in the criminal justice system to be eyewitness misidentiﬁcation, faulty forensic science, false informant testimony, and false confessions (Garrett, 2008).

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The Problem of False Confessions

A false confession is an admission to a criminal act— usually accompanied by a narrative of how and why the crime occurred—that the confessor did not commit. False confessions are difﬁcult to discover because neither the state nor any organization keeps records of them, and they are not usually publicized. Even if they are discovered, false confessions are hard to establish because of the difﬁculty of proving the confessor’s innocence. The literature on wrongful convictions, however, shows that there are several ways to determine whether a confession is false. Confessions may be deemed false when: (1) it is later discovered that no crime was committed (e.g., the presumed murder victim is found alive, the autopsy on a ‘‘shaken baby’’ reveals a natural cause of death); (2) additional evidence shows it was physically impossible for the confessor to have committed the crime (e.g., he or she was demonstrably elsewhere at the time or too young to have produced the semen found on the victim); (3) the real perpetrator, having no connection to the defendant, is apprehended and linked to the crime (e.g., by intimate knowledge of nonpublic crime details, ballistics, or physical evidence); or (4) scientiﬁc evidence afﬁrmatively establishes the confessor’s innocence (e.g., he or she is excluded by DNA test results on semen, blood, hair, or saliva). Drizin and Leo (2004) analyzed 125 cases of proven false confession in the U.S. between 1971 and 2002, the largest sample ever studied. Ninety-three percent of the false confessors were men. Overall, 81% of the confessions occurred in murder cases, followed by rape (8%) and arson (3%). The most common bases for exoneration were the real perpetrator was identiﬁed (74%) or that new scientiﬁc evidence was discovered (46%). With respect to personal vulnerabilities, the sample was younger than the total population of murderers and rapists: A total of 63% of false confessors were under the age of 25, and 32% were under 18; yet of all persons arrested for murder and rape, only 8 and 16%, respectively, are juveniles (Snyder, 2006). In addition, 22% were mentally retarded, and 10% had a diagnosed mental illness. Surprisingly, multiple false confessions to the same crime were obtained in 30% of the cases, wherein one false confession was used to prompt others. In total, 81% of false confessors in this sample whose cases went to trial were wrongfully convicted. Although other researchers have also documented false confessions in recent years, there is no known incidence rate, and to our knowledge empirically based estimates have never been published. There are several reasons why an incidence rate cannot be determined. First, researchers cannot identify the universe of false confessions because no governmental or private organization keeps track of this

information. As noted earlier, the sample of discovered cases is thus incomplete. Second, even if one could identify a nonrandom set of hotly contested and possibly false confessions, it is often difﬁcult if not impossible as a practical matter to obtain the primary case materials (e.g., police reports; pretrial and trial transcripts; and electronic recordings of the interrogations) needed to determine ‘‘ground truth’’ with sufﬁcient certainty to prove that the confessor is innocent. Also, it is important to note that although most case studies are based in the U.S. and England, proven false confessions have been documented in countries all over the world—including Canada (CBC News, August 10, 2005), Norway (Gudjonsson, 2003), Finland (Santtila, Alkiora, Ekholm, & Niemi, 1999), Germany (Otto, 2006), Iceland (Sigurdsson & Gudjonsson, 2004), Ireland (Inglis, 2004), The Netherlands (Wagenaar, 2002), Australia (Egan, 2006), New Zealand (Sherrer, 2005), China (Kahn, 2005), and Japan (Onishi, 2007). For estimating the extent of the problem, self-report methods have also been used. Sigurdsson and Gudjonsson (2001) conducted two self-report studies of prison inmates in Iceland and found that 12% claimed to have made a false confession to police at some time in their lives, a pattern that the authors saw as part of the criminal lifestyle. In a more recent study of Icelandic inmates, the rate of selfreported false confessions had increased (Gudjonsson, Sigurdsson, Einarsson, Bragason, & Newton, 2008). Similar studies have been conducted in student samples within Iceland and Denmark. Among those interrogated by police, the self-reported false confession rates ranged from 3.7 to 7% among college and older university students (Gudjonsson, Sigurdsson, Asgeirsdottir, & Sigfusdottir, 2006; Gudjonsson, Sigurdsson, & Einarsson, 2004; Steingrimsdottir, Hreinsdottir, Gudjonsson, Sigurdsson, & Nielsen, 2007; Gudjonsson, Sigurdsson, Bragason, Einarsson, & Valdimarsdottir, 2004). In a North American survey of 631 police investigators, respondents estimated from their own experience that 4.78% of innocent suspects confess during interrogation (Kassin et al., 2007). Retrospective selfreports and observer estimates are subject to various cognitive and motivational biases and should be treated with caution as measures of a false confession rate. In general, however, they reinforce the wrongful conviction data indicating that a small but signiﬁcant minority of innocent people confess under interrogation.

POLICE INTERROGATIONS IN CONTEXT

The practices of interrogation and the elicitation of confessions are subject to historical, cultural, political, legal, and other contextual inﬂuences. Indeed, although this article is focused on confessions to police within in a

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criminal justice framework, it is important to note that similar processes occur, involving varying degrees of pressure, within the disparate frameworks of military intelligence gathering and corporate loss-prevention investigations. Focused on criminal justice, we examine American interrogation practices of the past and present; the role played by Miranda rights; the admissibility and use of confession evidence in the courts; and current practices not only in the U.S. but in other countries as well.

‘‘Third-Degree’’ Practices of the Past

From the late nineteenth century through the 1930s, American police occasionally employed ‘‘third-degree’’ methods of interrogation—inﬂicting physical or mental pain and suffering to extract confessions and other types of information from crime suspects. These techniques ranged from the direct and explicit use of physical assaults to tactics that were both physically and psychologically coercive to lesser forms of duress. Among the most commonly used ‘‘third-degree’’ techniques were physical violence (e.g., beating, kicking, or mauling suspects); torture (e.g., simulating suffocation by holding a suspect’s head in water, putting lighted cigars or pokers against a suspect’s body); hitting suspects with a rubber hose (which seldom left marks); prolonged incommunicado conﬁnement; deprivations of sleep, food, and other needs; extreme sensory discomfort (e.g., forcing a suspect to stand for hours on end, shining a bright, blinding light on the suspect); and explicit threats of physical harm (for a review, see Leo, 2004). These methods were varied and commonplace (Hopkins, 1931), resulting in large numbers of coerced false confessions (Wickersham Commission Report, 1931). The use of third-degree methods declined precipitously from the 1930s through the 1960s. They have long since become the exception rather than the rule in American police work, having been replaced by interrogation techniques that are more professional and psychologically oriented. The twin pillars of modern interrogation are behavioral lie-detection methods and psychological interrogation techniques, both of which have been developed and memorialized in interrogation training manuals. By the middle of the 1960s, police interrogation practices had become entirely psychological in nature (Wald, Ayres, Hess, Schantz, & Whitebread, 1967). The President’s Commission on Criminal Justice and the Administration of Justice declared in 1967: ‘‘Today the third degree is virtually non-existent’’ (Zimring & Hawkins, 1986, p. 132). Still, as the United States Supreme Court recognized in Miranda v. Arizona (1966), psychological interrogation is inherently compelling, if not coercive, to the extent that it relies on sustained pressure, manipulation, trickery, and deceit.

Current Law Enforcement Objectives and Practices in the U.S.

American police typically receive brief instruction on interrogation in the academy and then more sustained and specialized training when promoted from patrol to detective. Interrogation is an evidence-gathering activity that is supposed to occur after detectives have conducted an initial investigation and determined, to a reasonable degree of certainty, that the suspect to be questioned committed the crime. Sometimes this determination is reasonably based on witnesses, informants, or tangible evidence. Often, however, it is based on a clinical hunch formed during a preinterrogation interview in which special ‘‘behavior-provoking’’ questions are asked (e.g., ‘‘What do you think should happen to the person who committed this crime?’’) and changes are observed in aspects of the suspect’s behavior that allegedly betray lying (e.g., gaze aversion, frozen posture, and ﬁdgety movements). Yet in laboratories all over the world, research has consistently shown that most commonsense behavioral cues are not diagnostic of truth and deception (DePaulo et al., 2003). Hence, it is not surprising as an empirical matter that laypeople on average are only 54% accurate at distinguishing truth and deception; that training does not produce reliable improvement; and that police investigators, judges, customs inspectors, and other professionals perform only slightly better, if at all—albeit with high levels of conﬁdence (for reviews, see Bond & DePaulo, 2006; Meissner & Kassin, 2002; Vrij, 2008). The purpose of interrogation is therefore not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials. Rather, police are trained to interrogate only those suspects whose culpability they ‘‘establish’’ on the basis of their initial investigation (Gordon & Fleisher, 2006; Inbau, Reid, Buckley, & Jayne, 2001). For a person under suspicion, this initial impression is critical because it determines whether police proceed to interrogation with a strong presumption of guilt which, in turn, predisposes an inclination to ask conﬁrmatory questions, use persuasive tactics, and seek confessions (Hill, Memon, & McGeorge, 2008; Kassin, Goldstein, & Savitsky, 2003). In short, the single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure the conviction of offenders (Leo, 2008). Designed to overcome the anticipated resistance of individual suspects who are presumed guilty, police interrogation is said to be stress-inducing by design—structured to promote a sense of isolation and increase the anxiety and despair associated with denial relative to confession. To achieve these goals, police employ a number of tactics. As

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described in Inbau et al.’s (2001) Criminal Interrogation and Confessions, the most inﬂuential approach is the socalled Reid technique (named after John E. Reid who, along with Fred Inbau, developed this approach in the 1940s and published the ﬁrst edition of their manual in 1962). First, investigators are advised to isolate the suspect in a small private room, which increases his or her anxiety and incentive to escape. A nine-step process then ensues in which an interrogator employs both negative and positive incentives. On one hand, the interrogator confronts the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or manufactured, and refuses to accept alibis and denials. On the other hand, the interrogator offers sympathy and moral justiﬁcation, introducing ‘‘themes’’ that minimize the crime and lead suspects to see confession as an expedient means of escape. The use of this technique has been documented in naturalistic observational studies (Feld, 2006b; Leo, 1996b; Simon, 1991; Wald et al., 1967) and in recent surveys of North American investigators (Kassin et al., 2007; Meyer & Reppucci, 2007).

Miranda Warnings, Rights, and Waivers

One of the U.S. legal system’s greatest efforts to protect suspects from conditions that might produce involuntary and unreliable confessions is found in the U.S. Supreme Court decision in Miranda v. Arizona (1966). The Court was chieﬂy concerned with cases in which the powers of the state, represented by law enforcement, threatened to overbear the will of citizen suspects, thus threatening their Constitutional right to avoid self-incrimination. In Miranda, the Court offered a remedy, requiring that police ofﬁcers had to inform suspects of their rights to remain silent and to the availability of legal counsel prior to confessions. This requirement aimed to strike a balance against the inherently threatening power of the police in relation to the disadvantaged position of the suspect, thus reducing coercion of confessions. In cases involving challenges to the validity of the waiver of rights, courts were to apply a test regarding the admissibility of the confession at trial. Statements made by defendants would be inadmissible if a waiver of the rights to silence and counsel was not made ‘‘voluntarily, knowingly, and intelligently.’’ One year after the Miranda decision, In re Gault (1967) extended these rights and procedures to youth when they faced delinquency allegations in juvenile court. Forty years later, there is no research evidence that Miranda and Gault achieved their ultimate objective. Police ofﬁcers routinely offer the familiar warnings to suspects prior to taking their statements. But research has not unequivocally determined whether confessions became more or less likely, are any more or less reliable, or are

occurring in ways that are more or less ‘‘voluntary, knowing, and intelligent’’ than in the years prior to Miranda. Several years ago, Paul Cassell, an outspoken critic of Miranda, had maintained (based on pre–post studies as well as international comparisons) that the confession and conviction rates have dropped signiﬁcantly as a direct result of the warning and waiver requirements, thus triggering the release of dangerous criminals (Cassell, 1996a, 1996b; Cassell & Hayman, 1996). Yet others countered that his analysis was based on selective data gathering methods and unwarranted inferences (Donahue, 1998; Feeney, 2000; Thomas & Leo, 2002); that these declines, if real, were insubstantial (Schulhofer, 1996); that four out of ﬁve suspects waive their rights and submit to questioning (Leo, 1996a, 1996b); and that the costs to law enforcement were outweighed by social beneﬁts—for example, that Miranda has had a civilizing effect on police practices and has increased public awareness of constitutional rights (Leo, 1996c; Thomas, 1996). In recent years, the U.S. Supreme Court has upheld the basic warning-and-waiver requirement (Dickerson v. United States, 2000)—for example, refusing to accept confessions given after a warning that was tactically delayed to produce an earlier inadmissible statement (Missouri v. Seibert, 2004). Practically speaking, however, research has suggested that the Court’s presumption concerning the protections afforded by Miranda warnings is questionable. At minimum, a valid waiver of rights requires that police ofﬁcers provide suspects an understandable description of their rights and that suspects must understand these warnings to waive them validly. What empirical evidence do we have that Miranda’s procedural safeguards produce these conditions? First, the rights of which suspects must be informed were clearly deﬁned in Miranda, but the warnings were not. The Miranda decision included an appendix wherein the Court offered an example of the warnings that were suggested, but police departments were free to devise their own warnings. A recent study examined 560 Miranda warning forms used by police throughout the U.S. (Rogers, Harrison, Shuman, Sewell, & Hazelwood, 2007). A host of variations in content and format were identiﬁed, and metric analysis of their wording revealed reading-level requirements ranging from third-grade level to the verbal complexity of postgraduate textbooks (see Kahn, Zapf, & Cooper, 2006, for similar results; also see Rogers, Hazelwood, Sewell, Harrison, & Shuman, 2008). Moreover, Miranda warning forms varied considerably in what they conveyed. For example, only 32% of the forms told suspects that legal counsel could be obtained without charge. Thus, many warning forms raise serious doubts about the knowing and intelligent waiver of rights by almost any suspect who is ‘‘informed’’ by them.

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Second, studies have repeatedly shown that a substantial proportion of adults with mental disabilities, and ‘‘average’’ adolescents below age 16 have impaired understanding of Miranda warnings when they are exposed to them. Even adults and youth who understand them sometimes do not grasp their basic implications. Many of these studies have examined actual adult or juvenile defendants, using reliable procedures that allow the quality of an individual’s understanding to be scored according to speciﬁed criteria. For example, do people after warnings factually understand that ‘‘I don’t have to talk’’ and that ‘‘I can get an attorney to be here now and during any questioning by police?’’ To answer this question, respondents have been examined in the relatively benign circumstance of a testing session with a researcher rather than in the context of an accusatory, highly stressful interrogation using standardized Miranda warnings that have about an average sixth- to seventh-grade reading level. Thus, the results obtained in these studies represent people’s grasp of the Miranda warnings under relatively favorable circumstances. Under these conditions, average adults exhibit a reasonably good understanding of their rights (Grisso, 1980, 1981). But studies of adults with serious psychological disorders (Cooper & Zapf, 2008; Rogers, Harrison, Hazelwood, & Sewell, 2007) or with mental retardation (Clare & Gudjonsson, 1991; Everington & Fulero, 1999; Fulero & Everington, 1995; O’Connell, Garmoe, & Goldstein, 2005) have found substantial impairments in understanding of Miranda warnings compared to nonimpaired adult defendants. Many studies have examined adolescents’ understanding of Miranda warnings, and the results have been very consistent (Abramovitch, Higgins-Biss, & Biss, 1993; Abramovitch, Peterson-Badali, & Rohan, 1995: Colwell et al., 2005; Goldstein, Condie, Kalbeitzer, Osman, & Geier, 2003; Grisso, 1980, 1981; Redlich, Silverman, & Steiner, 2003; Viljoen, Klaver, & Roesch, 2005; Viljoen & Roesch, 2005; Wall & Furlong, 1985). In one comprehensive study, 55% of 430 youth of ages 10–16 misunderstood one or more of the Miranda warnings (for example, ‘‘That means I can’t talk until they tell me to’’). Across these studies, the understanding of adolescents ages 15–17 with near-average levels of verbal intelligence tends not to have been inferior to that of adults. But youth of that age with IQ scores below 85, and average youth below age 14, performed much poorer, often misunderstanding two or more of the warnings. Some studies have shown that many defendants, especially adolescents, who seem to have an adequate factual understanding of Miranda warnings, do not grasp their relevance to the situation they are in (e.g., Grisso, 1980, 1981; Viljoen, Zapf, & Roesch, 2007). For example, one may factually understand that ‘‘I can have an attorney

before and during questioning’’ yet not know what an attorney is or what role an attorney would play. Others may understand the attorney’s role but disbelieve that it would apply in their own situation—as when youth cannot imagine that an adult would take their side against other adults, or when a person with paranoid tendencies believes that any attorney, even his own, would oppose him. The ability to grasp the relevance of the warnings beyond having a mere factual understanding of what they say is sometimes referred to as having a ‘‘rational understanding’’ or ‘‘appreciation’’ of the warnings. Many states, however, require only a factual understanding of Miranda rights for a ‘‘knowing and intelligent’’ waiver (e.g., People v. Daoud, 2000). In those states that apply a strict factual understanding standard, youth who technically understand the warnings (e.g., ‘‘I can have an attorney to talk to’’ or ‘‘I can stay silent’’) but harbor faulty beliefs that may distort the signiﬁcance of these warnings (‘‘An attorney will tell the court whatever I say’’ or ‘‘You have to tell the truth in court, so eventually I’ll have to talk if they want me to’’) are considered capable of having made a valid waiver, even if they have no recognition of the meanings of the words or a distorted view of their implications. Even among those with adequate understanding, suspects will vary in their capacities to ‘‘think’’ and ‘‘decide’’ about waiving their rights. Whether decision-making capacities are deemed relevant for a ‘‘voluntary, knowing, and intelligent’’ waiver will depend on courts’ interpretations of ‘‘intelligent’’ or ‘‘voluntary.’’ Several studies have thus examined the decision-making process of persons faced with hypothetical Miranda waiver decisions. Studies of adolescents indicate that youth under age 15 on average perform differently from older adolescents and adults. They are more likely to believe that they should waive their rights and tell what they have done, partly because they are still young enough to believe that they should never disobey authority. Studies have also shown that they are more likely to decide about waiver on the basis of the potential for immediate negative consequences—for example, whether they will be permitted to go home if they waive their rights—rather than considering the longer-range consequences associated with penalties for a delinquency adjudication (Grisso, 1981; Grisso et al., 2003). Young adolescents presented with hypothetical waiver decisions are less likely than older adolescents to engage in reasoning that involves adjustment of their decisions based on the amount of evidence against them or the seriousness of the allegations (Abramovitch, PetersonBadali, & Rohan, 1995). These results regarding the likelihood of immature decision-making processes are consistent with research on the development of psychosocial abilities of young adolescents in everyday circumstances (Steinberg & Cauffman, 1996) and other

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legal contexts (Grisso & Schwartz, 2000; Owen-Kostelnik, Reppucci, & Meyer, 2006). Other Miranda decision-making studies have examined the suggestibility of persons with disabilities (Clare & Gudjonsson, 1995: Everington & Fulero, 1999; O’Connell, Garmoe, & Goldstein, 2005) and adolescents (Goldstein et al., 2003; Redlich et al., 2003; Singh & Gudjonsson, 1992). Suggestibility refers to a predisposition to accept information communicated by others and to incorporate that information into one’s beliefs and memories. In general, these studies indicate that persons with mental retardation and adolescents in general are more susceptible to suggestion in the context of making hypothetical waiver decisions, and that greater suggestibility is related to poorer comprehension of the warnings. These results take on special signiﬁcance in light of observational studies of police behavior when obtaining Miranda waiver decisions from adolescents (Feld, 2006a, 2006b) and adults (Leo, 1996b). As described elsewhere in this article, police ofﬁcers often approach suspects with ‘‘friendly’’ suggestions regarding both the signiﬁcance of the Miranda waiver procedure and their decision. In either case, results indicate that adults with disabilities and adolescents in general are prone to adjust their behaviors and decisions accordingly. In a formal sense, whether one waives his or her rights voluntarily, knowingly, and intelligently does not have a direct bearing on the likelihood of false confessions (Kassin, 2005; White, 2001). The decision to waive one’s rights in a police interrogation does not necessarily lead to a confession, much less a false confession. Nevertheless, research cited earlier regarding the lack of attentiveness of persons with disabilities and adolescents to long-range consequences suggests an increased risk that they would also comply with requests for a confession—whether true of false—to obtain the presumed short-term reward (e.g., release to go home). In addition, some studies have found that poor comprehension of Miranda warnings is itself predictive of a propensity to give false confessions (Clare & Gudjonsson, 1995; Goldstein et al., 2003). Sometimes this stems from low intelligence or a desire to comply; at other times it appears to be related to a naı ¨ve belief that one’s actual innocence will eventually prevail—a belief that is not conﬁned to adolescents or persons with disabilities (Kassin & Norwick, 2004). Finally, many states require the presence of a parent or other interested adult when youth make decisions about their Miranda rights (Oberlander, Goldstein, & Goldstein, 2003). These rules are intended to offer youth assistance in thinking through the decision while recognizing that caretakers cannot themselves waive their children’s rights in delinquency or criminal investigations. Studies have shown, however, that the presence of parents at Miranda waiver events typically does not result in any advice at all or, when

it does, provides added pressure for the youth to waive rights and make a statement (Grisso & Ring, 1979). The presence of parents may be advisable, but it does not offer a remedy for the difﬁculties youth face in comprehending or responding to requests for a waiver of their rights. In summary, research suggests that adults with mental disabilities, as well as adolescents, are particularly at risk when it comes to understanding the meaning of Miranda warnings. In addition, they often lack the capacity to weigh the consequences of rights waiver, and are more susceptible to waiving their rights as a matter of mere compliance with authority.

Overview of Confession Evidence in the Courts

American courts have long treated confession evidence with both respect and skepticism. Judicial respect for confessions emanates from the power of confession evidence and the critical role that confessions play in solving crimes. The U.S. Supreme Court has recognized that confession evidence is perhaps the most powerful evidence of guilt admissible in court (Miranda v. Arizona, 1966)—so powerful, in fact, that ‘‘the introduction of a confession makes the other aspects of a trial in court superﬂuous, and the real trial, for all practical purposes, occurs when the confession is obtained’’ (Colorado v. Connelly, 1986, p. 182 citing McCormick, 1972, p. 316). Judicial skepticism of confession evidence stems from the historical fact that some law enforcement ofﬁcers, aware that confession evidence can assure conviction, have abused their power in the interrogation room. As the U.S. Supreme Court stated in Escobedo v. Illinois (1964): ‘‘We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation’’ (pp. 488–489). Judicial concern with juror over-reliance on confession evidence gave rise to a series of evolving rules designed to curb possible abuses in the interrogation room, exclude unreliable confessions from trial, and prevent wrongful convictions. These doctrines, which developed both in the common law of evidence and under the Constitution as interpreted by the U.S. Supreme Court, fell into two distinct sets of legal rules: corroboration rules and the voluntariness rules (Ayling, 1984; Leo, Drizin, Neufeld, Hal, & Vatner, 2006).

Corroboration Rules

The corroboration rule, which requires that confessions be corroborated by independent evidence, was the

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American take on the English rule known as the corpus delicti rule. Corpus delicti literally means ‘‘body of the crime’’—that is, the material substance upon which a crime has been committed’’ (Garner, 2004, p. 310). The rule was founded at common law in England in the wake of Perry’s Case, a seventeenth-century case in which a mother and two brothers were convicted and executed based upon a confession to a murder that was later discovered to be false when the supposed murder victim turned up alive (Leo et al., 2006). America’s version of Perry’s Case is the infamous 1819 case of Stephen and Jesse Boorn, two brothers who were convicted and sentenced to death in Manchester, Vermont for the murder of their brother-in-law Russell Colvin. Fortunately for the two men, both of whom had confessed to the killing under intense pressure from authorities, their lawyers located Colvin alive before their hangings took place (Warden, 2005). In American homicide cases, in response to Boorn, the rule came to mean that no individual can be convicted of a murder without proof that a death occurred, namely the existence of a ‘‘dead body.’’ As the rule evolved in the courts over time, it was applied to all crimes and required that before a confession could be admitted to a jury, prosecutors had to prove: (1) that a death, injury, or loss had occurred and (2) that criminal agency was responsible for that death, injury, or loss (Leo et al., 2006). The rule was designed to serve three purposes: to prevent false confessions, to provide incentives to police to continue to investigate after obtaining a confession, and to safeguard against the tendency of juries to view confessions as dispositive of guilt regardless of the circumstances under which they were obtained (Ayling, 1984). The corpus delicti rule does not require corroboration that the defendant committed the crime, nor does it demand any proof of the requisite mental state or any other elements of the crime. Moreover, the rule only requires corroboration of the fact that a crime occurred; it does not require that the facts contained in the confession be corroborated. Given the relative ease of establishing the corpus delicti in most criminal cases (e.g., producing a dead body in a homicide case and showing that death was not self-inﬂicted or the result of an accident), and the weight that most jurors attach to confession evidence, prosecutors can still obtain many convictions from unreliable confessions. The rule thus makes it easier in some cases for prosecutors to convict both the guilty and the innocent (Leo et al., 2006). At the same time, in a certain class of cases, the corpus delicti rule may bar the admission of reliable confessions. Because the rule requires that prosecutors prove that there be death or injury resulting from a criminal act, prosecutors may have a hard time getting confessions admitted when

the evidence is unclear as to whether any injury had occurred (e.g., child molestation without physical evidence) or whether it resulted from an accident or natural causes as opposed to a criminal act (e.g., child death by smothering or Sudden Infant Death Syndrome; see Taylor, 2005). For these reasons and others, the rule has been severely criticized. In Smith v. United States (1954), the U.S. Supreme Court criticized the corpus delicti rule for ‘‘serv[ing] an extremely limited function’’ (p. 153). The Court noted that the rule was originally designed to protect individuals who had confessed to crimes that never occurred but that it does little to protect against the far more frequent problem wherein a suspect confesses to a crime committed by someone else. In short, the rule did ‘‘nothing to ensure that a particular defendant was the perpetrator of a crime’’ (State v. Mauchley, 2003, p. 483). In place of the corpus delicti rule, the Supreme Court, in two decisions released on the same day—Smith and Opper v. United States (1954)—announced a new rule, dubbed the trustworthiness rule, which requires corroboration of the confession itself rather than the fact that a crime occurred. Under the trustworthiness rule, which was adopted by several states, the government may not introduce a confession unless it provides ‘‘substantial independent evidence which would tend to establish the trustworthiness of the confession’’ (State v. Mauchley, 2003, p. 48; citing Opper). In theory, the trustworthiness standard is a marked improvement on the corpus delicti rule in its ability to prevent false confessions from entering the stream of evidence at trial. In practice, however, the rule has not worked to screen out false confessions. Because investigators sometimes suggest and incorporate crime details into a suspect’s confession, whether deliberately or inadvertently, many false confessions appear highly credible to the secondhand observer. Without an electronic recording of the entire interrogation process, courts are thus left to decide a swearing contest between the suspect and the detective over the source of the details contained within the confession. Moreover, the quantum of corroboration in most jurisdictions that apply the trustworthiness doctrine is very low, allowing many unreliable confessions to go before the jury (Leo et al., 2006).

Rules Prohibiting Involuntary Confession

Until the late eighteenth century, out-of-court confessions were admissible as evidence even if they were the involuntary product of police coercion. In 1783, however, in The King v. Warrickshall, an English Court recognized the inherent lack of reliability of involuntary confessions and established the ﬁrst exclusionary rule:

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Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not intitled [sic] to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to ﬂow from the strongest sense of guilt …but a confession forced from the mind by the ﬂattery of hope, or by the torture of fear, comes in so questionable a shape…that no credit ought to be given it; and therefore it should be rejected (King v. Warrickshall, 1783, pp. 234–235).

The basis for excluding involuntary confessions in Warrickshall was a concern that confessions procured by torture or other forms of coercion must be prohibited because of the risk that such tactics could cause an innocent person to confess. In other words, involuntary confessions were to be prohibited because they were unreliable. Following Warrickshall, in the late 1800s, the U.S. Supreme Court adopted this reliability rationale for excluding involuntary confessions in a series of decisions (Hopt v. Utah, 1884; Pierce v. United States, 1896; Sparf v. United States, 1895; Wilson v. United States, 1896). The Supreme Court adopted a second rationale for excluding involuntary confessions in 1897, in Bram v. United States. In Bram, the Court for the ﬁrst time linked the voluntariness doctrine to the Fifth Amendment’s provision that ‘‘no person shall be compelled in any criminal case to be a witness against himself.’’ This privilege against self-incrimination was not rooted in a concern about the reliability of confessions. Rather, its origins were grounded in the rule of nemo tenetursepsum prodere (‘‘no one is bound to inform on himself’’), a rule dating back to the English ecclesiastical courts which sought to protect individual free will from state intrusion (Leo et al., 2006). The rule of nemo tenetur, which was adopted in the colonies and incorporated into the Fifth Amendment, applied only to self-incriminating statements in court, and had never been applied to extrajudicial confessions. By mixing two unrelated voluntariness doctrines, Bram rewrote history and provoked considerable confusion by courts and academics alike (Wigmore, 1970). Still, it gave birth to a new basis for excluding involuntary confession evidence— the protection of individual free will. Athirdbasisforexcludinginvoluntaryconfessionsbegan to emerge in 1936, in the case of Brown v. Mississippi, to deter unfair and oppressive police practices. In Brown, three black tenant farmers who had been accused of murdering a white farmer were whipped, pummeled, and tortured until they provided detailed confessions. The Court unanimously reversed the convictions of all three defendants, holding that confessions procured by physical abuse and torture were involuntary. The Court established the Fourteenth Amendment’s due process clause as the constitutional test for

assessing the admissibility of confessions in state cases. In addition to common law standards, trial judges would now have to apply a federal due process standard when evaluating the admissibility of confession evidence, looking to the ‘‘totality of the circumstances’’ to determine if the confession was ‘made freely, voluntarily and without compulsion or inducement of any sort’’’(Haynes v. Washington, 1963, quoting Wilson v. United States, 1896). As such,theCourtproposedtoconsider personal characteristics of the individual suspect (e.g., age, intelligence, mental stability, and prior contact with law enforcement) as well as the conditions of detention and interrogation tactics that were used (e.g., threats, promises, and lies). This deterrence rationale, implied in Brown, was made even more explicit in Haley v. Ohio, a case involving a 15year-old black boy who was questioned throughout the night by teams of detectives, isolated for 3 days, and repeatedly denied access to his lawyer (Haley v. Ohio, 1948). While the majority held that the confession was obtained ‘‘by means which the law should not sanction’’ (pp. 600–601), Justice Frankfurter, in his concurrence, went a step further, stating that the confession must be held inadmissible ‘‘[t]o remove the inducement to resort to such methods this Court has repeatedly denied use of the fruits of illicit methods’’ (p. 607). As these cases suggest, the Supreme Court relied on different and sometimes conﬂicting rationales for excluding involuntary confessions throughout the twentieth century (Kamisar, 1963; White, 1998). It was not always clear which of the three justiﬁcations the Court would rely on when evaluating the voluntariness of a confession. Nevertheless, the Court did appear to designate certain interrogation methods—including physical force, threats of harm or punishment, lengthy or incommunicado questioning, solitary conﬁnement, denial of food or sleep, and promises of leniency—as presumptively coercive and therefore unconstitutional (White, 2001). The Court also considered the individual suspect’s personal characteristics, such as age, intelligence, education, mental stability, and prior contact with law enforcement, in determining whether a confession was voluntary. The template of the due process voluntariness test thus involved a balancing of whether police interrogation pressures, interacting with a suspect’s personal dispositions, were sufﬁcient to render a confession involuntary (Schulhofer, 1981). The ‘‘totality of the circumstances’’ test, while affording judges ﬂexibility in practice, has offered little protection to suspects. Without bright lines for courts to follow, and without a complete and accurate record of what transpired during the interrogation process, the end result has been largely unfettered and unreviewable discretion by judges. In practice, when judges apply the test, ‘‘they exclude only the most egregiously obtained confessions and then only

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haphazardly’’ (Feld, 1999, p. 118). The absence of a litmus test has also encouraged law enforcement ofﬁcers to push the envelope with respect to the use of arguably coercive psychological interrogation techniques (Penney, 1998). Unlike its sweeping condemnation of physical abuse in Brown v. Mississippi, the Court’s overall attitude toward psychological interrogation techniques has been far less condemnatory. In particular, the Court’s attitudes toward the use of maximization and minimization (Kassin & McNall, 1991) and the false evidence ploy and other forms of deception (Kassin & Kiechel, 1996)—techniques that have frequently been linked to false confessions (Kassin & Gudjonsson, 2004)—has been largely permissive. A discussion of some of these cases follows.

DNA Exonerations and Discoveries in the U.S.

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